In today’s world, businesses working with the government are presented with immense opportunities for growth. To thrive, contractors must understand the potential risks and implications involved in this type of work. It can be difficult for decision makers to stay current on already complex regulations. Government contractors need counsel who adeptly maneuver through the intricacies of government statutes while keeping success of the business top of mind.
For decades, Taft’s Government Contract group has been helping contractors of all sizes navigate through not only the applicable regulations and statutes but also through the bureaucratic and the pragmatic. With our support, clients focus on the end objective and how best to get there – efficiently, effectively, and economically. Our team considers itself part of our clients’ teams. We believe our commitment and service is what immediately and continually distinguishes us from peers.
Taft has extensive experience supporting Fortune 100 companies, as well as entrepreneurial, privately-held, small business, nonprofit, and government clients.
We counsel clients on complex issues such as:
- Technical data rights and intellectual property issues.
- Commercial items.
- Country of origin determinations.
- Buy American Act, Trade Agreements Act, and Berry Amendment issues.
- Federal Supply Schedule issues.
- Conducting procurement compliance audits.
- Mandatory disclosures of all types of issues.
- Defending civil and criminal allegations of false claims or whistleblower suits.
- Representation of contractors in suspension and debarment proceedings.
- Construction claims work.
- Matters involving international or cross-cultural concerns, e.g., USAID, ACOE, and other OCONUS procurements.
Companies that choose to pursue federal or state and local contracts have the right to challenge an award made to others in error. We work with companies that have lost contracts to help them determine whether challenging (or protesting) the award makes sense. If so, we represent them in protesting the loss and helping them chose the best forum to do so — to the agency, to the Government Accountability Office or to the U.S. Court of Federal Claims. What makes this process so unusual is that, in almost every protest, after the protest is filed, the contractor cannot participate personally because only the attorneys are allowed to see information under the routinely-instituted Protective Order. We build trust with our clients from the outset since we are their eyes and ears in the protest proceeding.
It is imperative for government contractors to understand the complicated regulations affecting their intellectual property assets when used for a government contract and the work is funded with tax dollars. Understanding when and how a contractor needs to protect its intellectual property or obtain rights to intellectual property developed under federal contracts is more complex and counter-intuitive to the standard copyright and patent rights of the commercial world. Taft’s Government Contract team understands the differences, the nuances, and the solutions to acquire and protect intellectual property.
Doing business with the government, at any level, requires a working knowledge of the opportunities available to small businesses, including women-owned businesses, minority-owned business, service-disabled veteran-owned businesses, veteran-owned businesses, 8(a) contractors (socially and economically disadvantaged businesses), and small businesses located in Historically Underutilized Business Zones. Taft’s Government Contract group has extensive experience in working with these types of small businesses to help them achieve success while working within the bounds of the applicable legal federal or local regulations. Similarly, Taft’s lawyers work with large businesses to identify and work with the best suited small business partners through a variety of government programs.
Disputes & Claims
In addition, when a government customer asks for more work or when unanticipated situations occur causing a contractor’s costs to increase, the contractor needs to understand the rigid process for pursuing its rights to claim the additional time or money involved. Our attorneys understand these processes and help clients navigate through various stages to achieve maximum results in the shortest period of time.
Federal and state and local governments also require contractors to comply with a myriad of social, economic, and environmental requirements well beyond those in any commercial or other private sector contract. Businesses must comply with a separate set of rules (Contract Cost Principles and Procedures) that differ from generally accepted accounting principles. Regardless of how well a contract can be performed, companies that fail to comply with these additional obligations expose themselves to criminal and civil penalties for non-compliance.
Taft’s Government Contracts team has over 50 years of experience working with companies to assess these risks before they bid – from analyzing existing systems to ensure compliance, helping contractors institute or re-structure compliance programs and, when non-compliances occur, helping to disclose them effectively.
Examples of recent contracting matters handled by attorneys in Taft’s Government Contracts practice include:
- Successful representation of client in its pre-award protest of an Army solicitation for container cranes which is estimated at more than $45 million. The Army took corrective action in response to the protest by amending the Solicitation to add FAR 52.232-30, Installment Payments for Commercial Items, which will allow the winning contractor to receive installment payments prior to completion of performance, and to update the FAR 52.211-11, Liquidated Damages- Supplies, Services, or Research and Development clause to limit the amount of liquidated damages to 5% of the total contract price.
- Successfully protested an award for the purchase of various types of furniture for barracks at Camp Lejeune. The GAO sustained the protest, finding that the Marine Corps’ acceptance of a quotation that failed to conform to a material requirement of the solicitation was unreasonable.
- Effectively argued the Air Force violated FAR §17.207, by exercising the options of four ID/IQ contracts where it previously had removed all option prices evaluated at the time of award from these contracts. The Court of Federal Claims agreed, granting both summary judgment and permanent injunctive relief. The estimated value of all services to be acquired under the options exceeded $1 Billion.
- Meritoriously protested the Air Force’s failure to evaluate our client’s proposal in accordance with the terms of multiple-award solicitation. The GAO directed award to our client of an ID/IQ contract, as well as awarding attorney’s fees.
- Intervened in protest and successfully defended an $80 million U.S. Coast Guard contract for providing multidisciplinary personal healthcare services in 20 states and U.S. territories. The protestor unsuccessfully challenged that the agency had relaxed the material terms of the solicitation.
- Successfully protested the VA’s award of a Community Based Outpatient Clinic. The GAO sustained the protest, finding that the awardee’s evaluation ratings were overstated, the agency had recognized value based upon features not related to the evaluation criteria and/or that the agency’s evaluation was not properly documented. After the agency re-evaluated the proposals, it made award to the protester.
- Successfully defended client’s award of a contract for Enhanced Small Arm Protective Inserts ("ESAPI") body armor. The protester challenged the Agency’s evaluation of past performance, its best value trade-off and argued that the evaluators were biased in favor of the awardee. The Court of Federal Claims rejected all protestor’s claims.
- Meritoriously defended an award by the United States Agency for International Development ("USAID") to our client where protester challenged USAID’s scoring methodology, evaluation and discussions.
- Convinced the agency to take corrective action in response to a protest challenging the Air Force’s evaluation in an overseas contract for medical and social services. The protest was based on numerous grounds, including a flawed price analysis, flawed best value trade-off and erroneous technical evaluation.
- Persuaded the Court of Federal Claims to dismiss a bid protest challenging the issuance of a modification to a client’s current contract with the Army to add items that were to have been produced by a defaulted contractor because the modification, contemplated by the original solicitation, was within the scope of the contract. The Court agreed with our arguments that the protestor did not raise a viable protest under the Court’s bid protest jurisdiction.
- Prepared a multi-million-dollar Request for Equitable Adjustment ("REA") due to the Air Force’s failure to order the represented quantity of services to operate training simulators under a requirements contract. Converted the REA into a claim and, upon receipt of the Contracting Officer’s final decision, appealed the denial to the U.S. Court of Federal Claims. The Department of Justice requested a stay and we settled the case successfully before the Answer was filed.
- Filed a complaint with the ASBCA challenging Agency’s set off of client’s funds because of alleged defective pricing by client’s subcontractor. Convinced the Agency to reverse its position and return over 80% of the amount offset to the client.
- Prepared a multi-million-dollar claim that was appealed to the Civilian Board of Contract Appeals and successfully negotiated a settlement before discovery began.
- Convinced government agencies to rescind termination for default determinations for multiple clients. On many occasions, involving different clients, persuaded different agencies to rescind default terminations, convert them to no cost or convenience terminations. This allowed our clients to amend the representation in the Systems for Award Management ("SAM") from having been defaulted to not having been defaulted.
Small Business Issues
- Participated in the successful appeal of a Small Business Administration Area Office size determination, arguing that the Area Office improperly analyzed the "3-in-2" rule where the 8(a) mentor-protégé joint venture in question was not involved in the questioned procurement and was not generally affiliated.
- Successfully represented client after the Small Business Administration ("SBA") proposed to decertify their HUBZone status. The SBA had challenged the client’s qualifications to be a HUBZone certified entity on numerous issues, including ownership and control requirements, the size requirement and the residency requirements of the program.
- In response to a protest where the SBA declared our client ineligible as an SDVOSB, effectively worked with client to properly amend corporate documents to satisfy the ownership and control provisions of the SDVOSB regulations. Upon re-examination, the client was found to qualify for participation in the program.
- Successfully represented client in responding to allegations of contract fraud by assisting in responding to grand jury subpoena issued by the Federal Bureau of Investigation, Internal Revenue Service’s Criminal Investigation Section and the United States Attorney’s Office. Through meetings with federal prosecutors and investigators, we were able to resolve the case with no fines or charges against the client.
- After assisting client with responding to a subpoena for documents and participating in interviews with government counsel and investigators, convinced Department of Justice to not intervene in whistleblower case alleging client had falsely represented itself as a small business for the purpose of procuring government contracts set aside for small businesses.
- Represented client in responding to Defense Criminal Investigative Services and Department of Justice investigation regarding fees charged on a government contract and successfully convinced the government that the client had not engaged in any wrongdoing. Department of Justice dropped the case without assessing any fines or penalties.
- Represented client in responding to Defense Criminal Investigative Services, NASA OIG and Department of Justice investigation regarding various issues related to performance of a SBIR contract. Successfully convinced the government that the client had not engaged in any wrongdoing and the matter was dismissed.
- Represented a first tier subcontractor in a AAA arbitration brought by one of its subcontractors, seeking $1.4 million in damages. Prime contractor, a service-disabled veteran owned small business, was awarded a renovation project at a VA facility. The project had been terminated due to the release of asbestos by the second tier subcontractor; nevertheless, the second tier subcontractor sought to recover termination for convenience costs. The prime had gone out of business without paying our client. Arbitration resulted in the second tier subcontractor being awarded the costs of one change order, in an amount less than 10% of the original demand and no attorney fees.
- Represented an International non-profit organization in AAA arbitration brought by a subcontractor seeking to recover additional indirect costs attributed by the Claimant to USAID’s issuance of final Negotiated Indirect Cost Rate Agreements ("NICRA") for the years of performance. Received summary judgment from the Arbitrator finding that the subcontract did not provide for post-hoc payment of additional indirect costs, regardless of what or when NICRAs were determined, and that the statute of limitations had lapsed.
- Successfully negotiated a change to the terms of a solicitation for overseas education services after filing an agency pre-award protest challenging the solicitation as ambiguous and unduly restrictive.